Research On The Effectiveness Of Equity Transfer Guarantee In China

The prosperity of the market economy has given rise to a variety of new trading methods.In order to promote the operation and development of capital,to avoid the risks of market transactions,and to reduce the anxiety of the transaction subject,the law provides for a guarantee system to ensure the realization of the interests of creditors.In China’s current market transactions,the transfer guarantee system,as a newly created atypical guarantee system,is playing an increasingly important role.The advantage of equity transfer guarantee is cost savings and meets financing needs.Therefore,it is widely used in practice by both parties to the transaction.Among them,equity transfer guarantee is the typical representative.The equity transfer guarantee system originated from the customary law of Germany,Japan and other countries,which refers to the parties providing security for creditor’s rights by transferring equity.However,unlike the case where equity transfer guarantees are widely used in practice,this system is not explicitly stipulated by the existing laws in China,and there are suspicions of violating real right statutory and liquidity guarantees,and the theoretical community has always had great controversy over its effectiveness.Because the existing legal framework does not explicitly stipulate the equity transfer guarantee system,in practice,courts in various places have no uniform legal application for this type of judicial disputes.The same case has conflicting judgments in different courts,which seriously damages the credibility of justice.Therefore,how to unify and standardize the interpretation rules and referee calibers of equity transfer guarantees and clarify the effectiveness of equity transfer guarantees has become a top priority for resolving such disputes.Based on the perspective of adjudication analysis,this article combines the current academic theories and theories to analyze the disputes and disagreements in the current theory and practice of the equity transfer guarantees of limited liability companies.The new path of the equity transfer security system in the context of the codification of the civil code provides reference suggestions for the improvement of the security system of the civil code in China and the judicial decisions of courts at all levels.This article consists of an introduction,body and concluding remarks.Excluding the introduction and concluding remarks,the text is divided into four parts,as follows.The first part uses the method of empirical analysis to collect and sort out the judicial decisions of equity transfer guarantees in recent years,reveal the conflicts in the court’s judgment,find the problems and deficiencies,find out the reasons,and further analyze the problems later.Make the pavement.The second part is mainly the theoretical basis of the validity of equity transfer guarantee.By sorting out the theoretical theory of the legal structure of equity transfer guarantee,discussing the similarity and speciality of equity transfer guarantee and related systems,and analyzing the equity transfer guarantee.The jurisprudence basis lays the foundation for the following research.The third part is the thinking on the validity of equity transfer guarantee.In accordance with the order of internal,external and implementation,the effectiveness of the equity transfer guarantee shall be determined in turn.The internal effect is the relationship of rights and obligations between the equity transfer and the parties to the guarantee.This article mainly focuses on the scope of the secured claims,the scope of the underlying equity,and the use of the underlying equity.External effect is the relationship of rights and obligations between the parties and entities other than the contract.It is discussed from the following two aspects: the effect of the disposal of the target equity before the expiry of the settlement period and the effect of the preemptive right of shareholders when the guarantee is set.Effectiveness means that the debt has reached the liquidation period,and when the guarantor is unable to pay off the debt,the secured creditor can preferentially pay the target equity by changing the price.The content includes the effective constituent elements of the implementation,the liquidation obligation and the effect of the priority right.The fourth part is the path selection of equity transfer guarantee.Use comparative analysis to conduct extraterritorial inspections,select Germany and Japan,and Chinese Taiwan as a sample for research.Based on the knowledge of others,combine the national conditions of our country,and choose the path of China’s equity transfer guarantee in the legislative and judicial levels.The possible contributions of this paper are: Unlike the previous research,which focused on the whole of the transfer guarantee system,this article cuts into the perspective of the effectiveness of the equity transfer guarantee of a limited liability company.In contrast,the research entry point is more targeted.Combined with the latest judicial rulings and theoretical doctrines,research is carried out around the problems in judicial decisions,and provide references and suggestions for the improvement of the equity transfer guarantee system and judicial decisions.The shortcomings of this article are: The samples of judicial judgments selected in this article are from China Judgment Documents Network.By entering the keyword "equity transfer guarantee",the earliest time to find the adjudication documents is 2014.The time period is from 2014 to the end of 2019,and the remaining years are not covered,which may lead to slight errors in the results of empirical analysis.In addition,in the search and review of the literature,subject to its own foreign language level,there is a relative lack of attention to the first-hand literature of foreign scholars on equity transfer guarantees,mainly by citing domestic scholars’ analysis of extraterritorial research results.